RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:                       DOCKET NUMBER:  BC-2005-03043
                                       INDEX CODE:  110.02
      XXXXXXXXXXXXXXXXXX                COUNSEL: NONE

      XXXXXXXXXXX1                           HEARING DESIRED:  NO


MANDATORY CASE COMPLETION DATE:  15 October 2006


_________________________________________________________________

APPLICANT REQUESTS THAT:

His discharge characterization be changed from  a  dismissal  to  a  general
discharge under honorable conditions.

_________________________________________________________________

APPLICANT CONTENDS THAT:

His characterization of discharge is  hampering  his  career  goals  in  the
civilian world.  He has suffered long enough.  His stellar  performance  for
62 months as an officer, his cooperation during the investigation,  and  his
honesty should serve as mitigating factors to  change  his  characterization
of discharge.

In support of his appeal, the  applicant  provides  a  copy  of  the  court-
martial record of trial.  A copy of the applicant’s complete  submission  is
at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

The applicant was appointed a second lieutenant in  the  Air  Force  Reserve
effective 11 May 1985 at the age of 22.   He  was  subsequently  ordered  to
active duty on 21 October 1985 as a Flight Security Officer.  The  applicant
was progressively promoted to the grade of captain (O-3) effective and  with
a date of rank of 1 August 1989.  He received five  performance  evaluations
between 21 October 1985 and 10 October 1989 with all ratings as “Well  Above
Standards” or “Meets Standards.”

On 12 December  1990,  a  military  judge  convicted  the  applicant  of  an
indecent act with an airman.  The court  sentenced  him  to  dismissal,  two
months confinement,  and  forfeiture  of  $1000.   The  convening  authority
approved the sentence on 24 January 1991.  On 2 July  1991,  the  Air  Force
Court of Military Review affirmed the finding of guilty  and  the  sentence.
The Secretary of the Air Force approved the dismissal on 25  February  1992.
The applicant’s dismissal was executed on 16  March  1992.   He  served  six
years, three months, and five days on active duty.

_________________________________________________________________

AIR FORCE EVALUATION:

AFLSA/JAJM recommends the Board deny the applicant’s request.   JAJM  states
that under 10 United States Code (USC) Section 1552(f),  which  amended  the
basic corrections board legislation, the Board’s ability to correct  records
related to courts-martial  is  limited.   Specifically,  Section  1552(f)(1)
permits the correction of a record to reflect  actions  taken  by  reviewing
authorities  under  the  Uniformed  Code   of   Military   Justice   (UCMJ).
Additionally, Section 1552(f)(2) permits the correction of  records  related
to action on the sentence of courts-martial for  the  purpose  of  clemency.
Apart from these two limited exceptions, the effect of  Section  1552(f)  is
that the Board is without authority  to  reverse,  set-aside,  or  otherwise
expunge a court-martial conviction that occurred on  or  after  5  May  1950
(the effective date of the UCMJ).

JAJM states the applicant is  not  contending  that  a  specific  error  has
occurred which requires the  correction  of  his  court-martial  record  and
there is no indication in the record of such an error.   During  his  court-
martial, the applicant offered an extensive  amount  of  supporting  letters
and accolades for his military career.   The  convening  authority  and  the
Secretary of the Air Force also had all of this  information.   The  maximum
possible sentence for the applicant’s crime was a dismissal,  forfeiture  of
all pay and allowances, and confinement for  five  years.   The  applicant’s
sentence of dismissal, forfeiture of $1000, and two months confinement,  was
well within  the  legal  limits  and  was  appropriate  punishment  for  the
offenses committed.  Thus, any decision regarding the applicant’s  discharge
status would be done as a matter of clemency.

It is JAJM’s opinion that while clemency is an option, there  is  no  reason
for the Board to exercise clemency in this case.  The applicant’s record  of
service was notable but his crime was also heinous.  The applicant  presents
no evidence to warrant upgrading his discharge  characterization,  and  does
not demonstrate an equitable basis for relief.

The JAJM evaluation is at Exhibit C.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation was  forwarded  to  the  applicant  on  9
December 2005, for review and comment within 30 days  (Exhibit  D).   As  of
this date, this office has received no response.

_________________________________________________________________

THE BOARD DETERMINES THAT:

1.  The applicant has exhausted all remedies provided  by  existing  law  or
regulations.

2.  The application was not timely filed; however, it is in the interest  of
justice to excuse the failure to timely file.

3.  Insufficient relevant evidence has been  presented  to  demonstrate  the
existence of probable error or injustice.   The  applicant’s  discharge  had
its basis in his  trial  and  conviction  by  a  court-martial  and  he  has
provided  no  evidence  showing  that  the  sentence  exceeded  the  maximum
punishment allowable based on the offense of which  he  was  convicted.   We
are obliged to note that, in accordance with Title 10, United  States  Code,
Section 1552(f); actions by this Board are limited  to  corrections  to  the
record to reflect actions taken by the reviewing  officials  and  action  on
the sentence of the court-martial for the purpose  of  clemency.   There  is
nothing in the evidence provided which would  lead  us  to  believe  that  a
change to the actions of  any  of  the  reviewing  officials  is  warranted.
Furthermore, we do not find clemency is appropriate in this case  since  the
applicant has  not  provided  any  evidence  of  a  successful  post-service
adjustment.   Therefore,  the   applicant’s   request   is   not   favorably
considered.

_________________________________________________________________

THE BOARD DETERMINES THAT:

The applicant be notified that the evidence presented  did  not  demonstrate
the existence of material error  or  injustice;  that  the  application  was
denied without a personal appearance; and that the application will only  be
reconsidered upon the submission of newly discovered relevant  evidence  not
considered with this application.

_________________________________________________________________

The following members of the Board considered this application in  Executive
Session on 10 May 2006, under the provisions of AFI 36-2603:

            Mr. Michael V. Barbino, Panel Chair
            Ms. Barbara R. Murray, Member
            Mr. Wallace F. Beard Jr., Member


The following documentary evidence for AFBCMR  Docket  Number  BC-2005-03043
was considered:

      Exhibit A.  DD Form 149, dated 10 Oct 05, with attachments.
      Exhibit B.  Applicant's Master Personnel Records.
      Exhibit C.  Letter, AFLSA/JAJM, dated 1 Dec 05.
      Exhibit D.  Letter, SAF/MRBR, dated 9 Dec 05.




                                  MICHAEL V. BARBINO
                                                   Panel Chair